Whose land is it anyway?

Devonport locals are fighting to stop the sale of Navy land to Ngati Whatua. Geoff Cumming finds there's another side to the story.

Chris Darby. Photo / Dean Purcell

Land has long been a powder keg beneath the veneer of Pakeha/Maori harmony and the cordite whiff over a headland on Auckland's North Shore suggests that, 172 years after the signing of the Treaty of Waitangi, land deals retain their ability to blow up in people's faces.

At the 23rd hour, a painstakingly negotiated Treaty settlement for Ngati Whatua O Orakei is threatening to unravel as locals rise up to oppose one element of it - the sale of a block of Navy land, which was earmarked to be added to the Fort Takapuna reserve. The 3.2ha Navy site, fenced off and studded with buildings used for officer training and other activities, occupies the southwest corner of an 11ha headland between Narrow Neck and Cheltenham. Though the whole reserve is Crown-owned, its administration is split between the Defence Ministry, Department of Conservation and the Auckland Council.

To Maori, it is O Peretu - the living place of Peretu, a Tainui ancestor. Iwi who made customary use of (and sometimes fought over) the area include Ngati Paoa, Kawerau a Maki and Ngati Whatua. That was well before the Crown bought it in a dodgy land deal covering the entire North Shore in 1841.

Its European military history goes back to the "Russian scare" of the 1880s and Pakeha locals know it by various names, including HMNZS Tamaki Reserve and Fort Cautley.

The fenced-off portion used by the Navy is known as HMNZS Philomel. The Defence Ministry's decision to sell and lease back the base for the Treaty settlement has torpedoed locals' firm belief that the site - should the Navy one day find it surplus to requirements - would be added to the adjoining public open space. That belief stems from the entire headland's inclusion in the Hauraki Gulf Marine Park Act, passed with multi-party support in 2000 (with a clause stating that, should the Navy ever leave, the site would be treated as recreation reserve and included in the park).

The singular folk of the Devonport peninsula are renowned for mouse-that-roared responses to outside interference and this Crown reversal is no different. They have been here before.

In the late-1990s, the Tamaki Reserve Protection Trust went to court to stop Defence selling a then much bigger portion of the headland. Their court victory - which hinged on the land's underlying reserve status - was followed by the parliamentary campaign to include the reserve in the marine park.

There's talk this time of occupying the land. Local board chairman Chris Darby is lobbying politicians to oppose enabling legislation, which would remove the site from the marine park.

Since the locals dusted off their battle fatigues, positions have quickly become as entrenched as the fortifications dotting the headland. Auckland Mayor Len Brown leapt in behind the local board, writing to Treaty Negotiations Minister Chris Finlayson to remind him of the previous court action and the land's subsequent inclusion in the park legislation - and that the locals are still around. This week, the council's Auckland Plan Committee voted to submit in opposition to the part of the enabling bill which cancels the site's reserve status. They also condemned the lack of consultation.

Finlayson hit back at the mayor and told those who claim they were kept in the dark that the Crown had no obligation to consult with them.

The people of this National Party stronghold took a rare chance to go inside the Philomel fence last weekend for a public meeting, where they applied a blowtorch to Finlayson. The campaign leaders say their fight is with the Crown. But the meeting's vocal support for those who railed about soft deals for Maori show how readily land disputes can be subsumed by prejudice.

It's a row where the key issues have been lost in red mist and red herrings - but any political backdown in Wellington would have severe repercussions for a raft of Treaty deals in the Auckland region.

The dispute has overwhelmed otherwise positive reaction to the Ngati Whatua deed of settlement whose highlights include the iwi's purchase of Navy housing land for $90 million in Devonport, Belmont and Bayswater; a guardianship role at Kauri Pt in Birkenhead; stewardship of a 30ha reserve alongside Purewa Creek in Orakei and $18 million in cash.

The settlement follows the scuppering of a 2006 agreement for Ngati Whatua after other iwi with claims in Auckland complained they were being shut out. The upshot was a rethink in the way the Crown negotiates and a start on collective and individual agreements for 21 iwi in the Auckland and Hauraki regions. Ngati Whatua's settlement is linked to what's proposed in these other deals, which are nearing completion. But any political pressure to back out of Narrow Neck could jeopardise the lot - and the hard-won unity between the historically divided iwi - because of the flow-on effect.

Up on Takapuna Pt, as the headland is known, it is easy to see why this land is so coveted. The coastal strip, held by DoC, commands stunning views over Rangitoto Channel and the wider gulf. The public park includes heritage gems like Fort Cautley, administered by DoC. Sports fields behind the Philomel base add to the public open space and have been split from the Navy site as part of the deal. Since the headland was included in the marine park in 2000, locals and the council have cleared Navy buildings and a road from the northern slopes to extend the open space, which has become a magnet for recreation and community events.

Locals maintain they grew aware of the sale-and-lease-back deal only after the deed of settlement for Ngati Whatua was signed in November, sparking allegations of backroom deals and lack of consultation. But they only really woke up to the implications in February, when they learned of the planned law change to remove the block from the marine park.

Former Defence Minister and North Shore MP Wayne Mapp says he briefed the Devonport-Takapuna board about what was proposed a year ago. "I mentioned it to the local board in April last year but I don't think they took on board what I was saying."

Locals are dismayed that the Crown can introduce new legislation to amend another law - though this is not uncommon in Treaty deals and settlements that revoke reserve or conservation status.

That reality hasn't ended the fight. The local board's Darby is questioning future protection for the sports fields behind the Navy site and public access to the coastal reserve. He is mustering considerable support.

Darby is no redneck, having protested at Bastion Pt in support of Ngati Whatua in the 1980s and fought environmental battles in Ngataringa Bay. But he is a savvy politician and his line that "the resolution of one historic grievance will reignite another" has shaped much of the media coverage to date.

The local paper, the Devonport Flagstaff, is campaigning hard and supporting calls to occupy the land. National media have fanned the flames with inflated reporting of the value of the deal and by focusing on public spaces not affected by the proposed settlement.

Some locals suggest Ngati Whatua could demolish the Navy buildings and build high-rise towers or intensive housing on the site, which, Darby notes, is the equivalent of "40 800sq m residential sections". But under the deal the Navy will continue to use the base for at least 15 years and potentially many decades after that. It is part of the tribe's commercial redress - Ngati Whatua will pay $13 million but derive long-term rental.

Only once the Navy leaves can it look at redeveloping the site, in accordance with district plan rules.

Darby and supporters from the Tamaki reserve trust point to clauses in the marine park act which enshrined the land's underlying reserve status and ensured it would one day become part of the public reserve.

But the locals, the mayor and some other politicians seem to have overlooked another clause in the act - clause 14, which states that nothing in the legislation prevents the land being subject to a Treaty claim, whether existing or future.

Nor can they really argue this came out of the blue. Well before the legislation was passed in 2000, the Navy land was subject to treaty claim interest.

This was even referred to in the 1999 court ruling - the one taken by the trust - which confirmed the land's reserve status. The reference is to a 1995 discussion by Cabinet's Treaty Issues Committee about landbanking the site for upcoming settlements. And Ngati Whatua had first lodged claims on the North Shore in the early 80s.

So the politicians who included the site in the marine park act also knew the land was the subject of Treaty claim interest. In the decade which followed, the possibility that the site might form part of a settlement continued to be flagged. It is shown, for instance, in a map in the 2007 Waitangi Tribunal report on Ngati Whatua's claims. Herald reports in 2006 refer to the possible sale of Navy housing to Ngati Whatua along with "other naval land" on the North Shore worth $90 million.

But the Tamaki trust's Mike Pritchard says locals thought the base's inclusion in the marine park would guarantee its safety.

If the Devonport vanguard have no legal case (they quickly backed out of planned court action), they nevertheless can rail about the morality of the Crown's about-face. Darby claims the decision to make the site available has the whiff of revenge for the earlier court case, which stopped Defence selling the block.

This is strongly denied in Wellington. It seems Defence was asked by Treasury and the Office of Treaty Settlements in 2010 to reconsider potential sites for Treaty deals after Ngati Whatua's 2006 draft deal hit the wall. In the interim, some Navy housing land had been sold off, reducing the quantum available for commercial redress.

Suggestions that an alternative commercial site be found do not wash with Ngati Whatua or the Office of Treaty Settlements. There is scarce Crown land of any size available in the Auckland region for commercial redress - and it is earmarked for negotiations with other iwi.

It's obvious, however, that the Crown failed to appreciate the depth of feeling this site would generate. Mapp says it was thought locals would understand because the Navy planned to stay for the foreseeable future, keeping it off-limits to the public. Ngati Whatua were receptive because it provided an income stream and restored a connection with land of historic value.

Mike Dreaver, the Crown's lead negotiator, says it was not a case of Wellington forgetting locals' wishes or the Marine Park Act. "It was assumed community interest related to the open space. If we had thought even harder about it and were aware of the potential response of the community, I think we would still have come up with this same proposal."

"Are we really robbing the people of North Shore of an incredibly important asset? We don't think so. Defence will continue to use it and if Ngati Whatua get the land I think they will do something responsible with it. They don't put up Spanish villas overlooking Takapuna beach with infinity pools. I don't believe it's going to be twin towers. We think they are very good custodians of land."

Ngati Whatua - so close to a deal after more than a decade of talks and the collapse of their earlier negotiations - are understandably aghast at the growing revolt. They aim most flak at Mayor Brown and the Auckland Council for opposing the enabling bill after its introduction to Parliament. Normally cautious spokesman Ngarimu Blair accuses civic leaders of scaremongering and misinformation. He recalls Brown's supportive speech and waiata at the deed of settlement signing last November - "there can be no stronger endorsement one could give".

"To say we are disappointed by this flip-flopping is an understatement.

"[Iwi] are on the cusp of settling 15 or 16 claims in the Auckland region which really have held us back for generations and they are all interlinked. So if one community board or sector of the community doesn't play their part it has a knock-on effect not only to the overall package but to packages for each individual iwi in the region."

Blair says Europeans weren't the only ones who opposed the land sale in the late-90s - Ngati Whatua also lobbied hard. "The Crown understood [in 2000] there was a treaty issue to be dealt with as well. This process shows that well-established treaty settlement processes are being followed."

He says he can understand the feelings of locals who thought they understood something from previous dealings with the Crown only to learn otherwise. "We have some sympathy with that because our chiefs in their oral histories in the 1840s often had different recall from the Crown."

Ngati Whatua lost over 30,000 ha in Auckland and the North Shore after the signing of the treaty.

"In our dealings with the Crown we learnt the hard way - you've got to study the law and what's written.

"They are losing a sense of history over the scale of the loss of land suffered by Ngati Whatua and other tribes in Auckland. I hope they will weigh that up against the perceived loss of 3.2ha which they've never had access to."